Bailey v. Rooks et al

Filing 9

ORDER TO MODIFY THE DOCKET, DISMISSING CLAIMS AGAINST DEFENDANTS ROOKS AND HAYWOOD COUNTY, DENYING REQUEST TO APPOINT COUNSEL AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT FISHER. Signed by Judge James D. Todd on 1/29/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
_____________________________________________________________________________
WILLIE BAILEY,
Plaintiff,
vs.
DR. ROBERT ROOKS, ET AL.,
Defendants.

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No. 1:15-cv-1037-JDT-egb

ORDER TO MODIFY THE DOCKET,
DISMISSING CLAIMS AGAINST DEFENDANTS ROOKS AND HAYWOOD COUNTY,
DENYING REQUEST TO APPOINT COUNSEL
AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON
DEFENDANT FISHER

On February 19, 2015, Plaintiff Willie Bailey (“Bailey”), who is confined in the West
Tennessee Detention Facility (“WTDF”) in Mason, Tennessee, filed a pro se complaint pursuant
to 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis for actions that
occurred at the Haywood County Jail (“Jail”) in Brownsville, Tennessee. (ECF Nos. 1 & 2.) On
February 23, 2015, the Court granted leave to proceed in forma pauperis and assessed the civil
filing fee pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4).
On April 15, 2015, Bailey filed an amended complaint, intended to supplement, not supersede
the original complaint. (ECF No. 6.) The Clerk shall record the defendants as Dr. Robert Rooks,
Haywood County Jail,1 and Captain (“Cpt.”) Tonya Fisher.2

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Bailey lists the Jail as a Defendant. The Court construes the claims against the Jail as an
attempt to assert claims against Haywood County, which is a named party in this complaint. The
Clerk is DIRECTED to remove Haywood County Jail as a defendant.

I. THE COMPLAINT AND AMENDED COMPLAINT
In his complaint, Bailey alleges that on January 8, 2015, he was transported to the dental
office of Defendant Rooks by Officer Wills, who is not a party to this complaint, to address pain
Bailey had in his tooth. (Compl. Statement of Claim at 1, ECF No. 1-1.) After getting an x-ray,
Defendant Rooks examined Bailey’s tooth and determined that it could be pulled.

(Id.)

Defendant Rooks then tried to numb the area by injecting Bailey two or three times and waiting
for about five minutes. (Id.) After Bailey stated that he did not feel any pain, Defendant Rooks
began to work, but when Baily complained of pain, Defendant Rooks gave Bailey another
injection and waited for the injection to work. (Id.)
Although the pain appeared to subside, once Defendant Rooks began putting pressure on
the tooth the pain became unbearable and Bailey requested Defendant Rooks to stop. (Id. at 2.)
Because Defendant Rooks did not stop, Bailey got up off the table to tell Officer Wills that he
was ready to go. (Id.) At that time, Defendant Rooks grabbed Bailey, who was handcuffed and
shackled, by the arm, snatched him back hard into the chair, told Bailey to sit down, and then
walked out of the room. (Id.)
Once he was back at the Jail, Bailey told Lietenant Tyus, who is not a party to this
complaint, that he wanted to press charges against Defendant. Rooks. (Id.) After investigating
Bailey’s complaint, Defendant Fisher told Bailey that she would not sign a warrant on the matter
and further that they are not responsible for Bailey once he leaves the jail. (Id.)

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Bailey’s Amended Complaint adds Captain Tonya Fisher as a defendant. The Clerk is
DIRECTED to add Captain Tonya Fisher as a defendant.

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In his amended complaint, Bailey alleges that when he came to the Jail on December 15th,
Defendant Fisher denied him his “Kuffi” and his religious book. (Amended Compl. at 2, ECF
No. 6.)
On both the Complaint and Amended Complaint, Bailey seeks, “injunctive and
monetary” relief. (Compl. at 3, ECF No. 1; Amended. Compl. at 3, ECF NO. 6.)
II. ANALYSIS
A.

Screening and Standard
The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaint—
(1)

is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or

(2)

seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as
stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting
all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations
in [the] complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in
original). “[P]leadings that . . . are no more than conclusions . . . are not entitled to the
assumption of truth. While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at
555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to

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relief. Without some factual allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also
‘grounds’ on which the claim rests.”).
“A complaint can be frivolous either factually or legally. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Hill, 630 F.3d
at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for
relief. Statutes allowing a complaint to be dismissed as frivolous give “judges
not only the authority to dismiss a claim based on an indisputably meritless
legal theory, but also the unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose factual contentions are
clearly baseless.” Neitzke, 490 U.S. at 327, 109 S. Ct. 1827 (interpreting 28
U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge
does not have to accept “fantastic or delusional” factual allegations as true in
prisoner complaints that are reviewed for frivolousness. Neitzke, 490 U.S. at
327-28, 109 S. Ct. 1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and prisoners
are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259, 2011 WL
285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to
comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a
plaintiff] has not spelled out in his pleading’”) (quoting Clark v. Nat’l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in original); Payne v. Sec’y of Treas., 73 F.
App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne’s

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claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation
to act as counsel or paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506,
510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause
of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would
transform the courts from neutral arbiters of disputes into advocates for a particular party. While
courts are properly charged with protecting the rights of all who come before it, that
responsibility does not encompass advising litigants as to what legal theories they should
pursue.”).
B.

§ 1983 Claim
Bailey filed his complaint and amended complaint on the court-supplied form for actions

under 42 U.S.C. § 1983 which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a deprivation
of rights secured by the “Constitution and laws” of the United States (2) committed by a
defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
1.

Claims Against Haywood County

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Bailey has sued Haywood County. When a § 1983 claim is made against a municipality,
the court must analyze two distinct issues: (1) whether plaintiff’s harm was caused by a
constitutional violation; and (2) if so, whether the municipality is responsible for that violation.
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).

The second issue is

dispositive of plaintiff’s claim against Haywood County.
A local government “cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); see also Searcy
v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345
(6th Cir. 1994). A municipality cannot be held responsible for a constitutional deprivation unless
there is a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889
(6th Cir. 1993). To demonstrate municipal liability, a plaintiff “must (1) identify the municipal
policy or custom, (2) connect the policy to the municipality, and (3) show that his particular
injury was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir.
2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). “Where a
government ‘custom has not received formal approval through the body’s official
decisionmaking channels,’ such a custom may still be the subject of a § 1983 suit.” Alkire, 330
F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or custom “must be ‘the moving
force of the constitutional violation’ in order to establish the liability of a government body
under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk Co. v. Dodson, 454 U.S. at 326 (citation
omitted)).

“[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the

municipality from acts of employees of the municipality, and thereby make clear that municipal

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liability is limited to action for which the municipality is actually responsible.’” City of St. Louis
v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80
(1986)) (emphasis in original).
Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant Cnty Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the
municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v. Campbell, No.
3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v. Ankrom,
No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of
Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v.
Correctional Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15,
2008) (denying motion to dismiss where complaint contained conclusory allegations of a custom
or practice); Cleary v. Cnty of Macomb, No. 06-15505, 2007 WL 2669102, at *20 (E.D. Mich.
Sept. 6, 2007) (same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156, at *8
(E.D. Mich. Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL
1421099, at *3 (W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify an
official policy or custom which caused injury to Bailey. Instead, it appears that Bailey is suing
Haywood County because he was confined in a county institution and the County employed
persons who allegedly violated his rights.
2.

Eighth Amendment: Cruel and Unusual Punishment

For a convicted prisoner, claims for assault by a prison official arise under the Eighth
Amendment, which prohibits cruel and unusual punishment. See generally Wilson v. Seiter, 501

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U.S. 294 (1991).3

An Eighth Amendment claim consists of both objective and subjective

components. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8
(1992); Wilson, 501 U.S. at 298; Williams v. Curtin, 633 F.3d at 383; Mingus v. Butler, 591 F.3d
474, 479-80 (6th Cir. 2010).

The objective component requires that the deprivation be

“sufficiently serious.” Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298.
In the context of excessive force, the objective and subjective components of Eighth
Amendment analysis merge into a single inquiry because, “[w]hen prison officials maliciously
and sadistically use force to cause harm, contemporary standards of decency always are
violated." Hudson, 503 U.S. at 9, 112 S. Ct. at 1000. Thus, the relevant inquiry in any excessive
force claim is "whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986).
In determining whether the force was applied in a malicious or sadistic manner, the Court
should consider such factors as the need for the application of the force, the amount of force
used, and the extent of the injury inflicted. Whitley, 475 U.S. at 321. “Not every push or shove,
even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's
constitutional rights." Johnson v. Glick, 481 F.2d 1028, at 1033 (2nd Cir. 1973).

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On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 133 S. Ct. 2466
(2015), that excessive force claims brought by pre-trial detainees must be analyzed under a
standard of objective reasonableness, rejecting a subjective standard that takes into account a
defendant’s state of mind. Id. at 2472-73. It is unclear whether or to what extent the holding in
Kingsley may affect the deliberate indifference standard for claims concerning an inmate’s health
or safety, which the Sixth Circuit applies to both pretrial detainees and convicted prisoners. See
Morabito v. Holmes, --- F. App’x ---, 2015 WL 5920204, at *4-*5 (6th Cir. 2015) (applying,
even after the decision in Kingsley, the objective reasonableness standard to pretrial detainee’s
excessive force claims and the deliberate indifference standard to denial of medical care claim).
Absent further guidance, the Court will continue to apply the deliberate indifference analysis to
claims concerning a pretrial detainee’s health and safety.

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Bailey’s allegation that he was pushed by Defendant Rooks causing him to slam back
into his chair does not demonstrate a malicious or sadistic use of force. Bailey states that he was
handcuffed and shackled; however, he was able to stand up. (Compl. Statement of Claim at 1,
ECF No. 1-1.) He further provides that after Defendant Rooks pushed him back into his seat,
Defendant Rooks left the room. (Id.) Bailey does not allege any need for medical treatment nor
does he allege any injury beyond the pain being pushed back into the dental chair. Therefore, the
claims against Defendant Rooks fail to allege an Eighth Amendment violation.
Additionally, Bailey cannot compel any criminal prosecution of Defendant Rooks. As a
private citizen, Bailey has no authority to initiate a federal criminal prosecution of Defendant
Rooks for his alleged unlawful acts. Kafele v. Frank & Wooldridge Co., 108 Fed. App’x 307,
308-09 (6th Cir. 2004) (citing Diamond v. Charles, 476 U.S. 54, 64-65 (1986); Lopez v.
Robinson, 914 F.2d 486, 494 (4th Cir. 1990); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989);
Hamilton v. Reed, 29 Fed. App’x 202, 204 (6th Cir. 2002) (same).
C.

Motion to Appoint Counsel
In his complaint, Bailey requested the appointment of counsel. (Compl. Statement of

Claim at 3, ECF No. 1-1.) Pursuant to 28 U.S.C. § 1915(d), the “court may request an attorney
to represent any such person unable to employ counsel.” However, “[t]here is no constitutional
or . . . statutory right to counsel in federal civil cases.” Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993), and Ҥ 1915(d) does not authorize the federal courts to make coercive appointments
of counsel” to represent indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S.
296, 310 (1989). Generally, a court will only appoint counsel in exceptional circumstances.
Willett v. Wells, 469 F. Supp. 748, 751 (E.D. Tenn. 1977). Although “no comprehensive
definition of exceptional circumstances is practical,” Branch v. Cole, 686 F.2d 264, 266 (5th Cir.

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1982), courts resolve this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986). Examining the pleadings and documents in the file, the Court
analyzes the merits of the claims, the complexity of the case, the pro se litigant’s prior efforts to
retain counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep’t,
763 F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985).
As a general rule, counsel should be appointed in civil cases only if a litigant has made “a
threshold showing of some likelihood of merit.” Cooper v. A. Sargenti Co., 877 F.2d 170, 174
(2d Cir. 1989). Because Bailey has not met the threshold showing likelihood of success, the
motion is DENIED.
III. CONCLUSION
The Court DISMISSES Bailey’s complaint against Defendants Rooks and Haywood
County for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Process will be issued for Defendant Fisher on Bailey’s
First Amendment claim for confiscating religious materials.
It is ORDERED that the Clerk shall issue process for Defendant Fisher and deliver that
process to the U.S. Marshal for service. Service shall be made on Defendant Fisher pursuant to
Federal Rule of Civil Procedure 4(e) and Tennessee Rules of Civil Procedure 4.04(1) and (10),
either by mail or personally if mail service is not effective. All costs of service shall by
advanced by the United States.
It is further ORDERED that Bailey shall serve a copy of every subsequent document he
files in this cause on the attorneys for Defendant Fisher or on any unrepresented Defendant.

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Bailey shall make a certificate of service on every document filed. Bailey shall familiarize
himself with Federal Rules of Civil Procedure and this Court’s Local Rules.4
Bailey shall promptly notify the Clerk, in writing, of any change of address or extended
absence. Failure to comply with these requirements, or any other order of the Court may result
in the dismissal of this case without further notice.
IT IS SO ORDERED.
s/James D. Todd__________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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A copy of the Local Rules may be obtained from the Clerk. The Local Rules are also
available on the Court’s website at www.tnwd.courts.gov/pdf/content/LocalRules.pdf.

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